- 37 - that under the terms of the trust the income referred to must be currently (at least annually) distributable to the spouse or that she must have such command over the income that it is virtually hers. Sec. 20.2056(b)-5(f)(8), Estate Tax Regs. A determination of the nature of the interest that passes to the surviving spouse is made pursuant to the law of the jurisdiction under which the interest passes. Estate of Nicholson v. Commissioner, supra at 672-673. In the instant case, that is the law of New York. Although we will look to local law to determine the nature of the interests provided under a trust document, we are not bound to give effect to a local court order that modifies that document after the Commissioner has acquired rights to tax revenues under its terms. E.g., id. at 673. The law is clear that we are not bound by the action of a State trial court, such as the Surrogate’s Court, that has not been affirmed by the State’s highest court. Commissioner v. Estate of Bosch, 387 U.S. 456 (1967). “[I]n construing a will, the intention of the testator must be our ‘absolute guide’”. In re Bieley, 695 N.E.2d 1119, 1122 (N.Y. 1998) (citations omitted); see In re Selner, 26 N.Y.S.2d 783 (App. Div.), affd. 39 N.E.2d 287 (N.Y. 1941). “The prime consideration * * * is the intention of the testator as expressed in the will. All rules of interpretation are subordinated to the requirement that the actual purpose of the testator be sought andPage: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Next
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